TMI Blog2016 (12) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... urrent finding of fact on this aspect would not be justified. In the present case, it is not disputed that the said company M/s. De Long Minerals and Logistics is not having any establishment in India. It is also not established that any income of the said company is assessed in India or any tax is paid on that count in India. In such circumstances, the observations of the Apex Court relied upon by this Court in the judgment of Commissioner of Income Tax V/s. Gujarat Reclaim & Rubber Products Ltd. (1980 (8) TMI 2 - SUPREME Court ) would be squarely applicable to the facts of the present case. - Decided in favour of assessee - TAX APPEAL NO.20 OF 2016 - - - Dated:- 18-4-2016 - F. M. REIS AND NUTAN D. SARDESSAI, JJ. For The Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. The learned Counsel further pointed out that though M/s. De Long Minerals and Logistics which is a non resident company established abroad, but however, the income has to be deemed to be income in India and, as such, it was incumbent upon the respondent to deduct the tax at source. The learned Counsel further points out that in view of the failure on the part of the respondent to deduct tax at source the appellant is entitled to claim amounts from the respondent. 4. On the other hand, the learned Counsel for the respondent has pointed out that both the contentions raised in the present appeal stand concluded in view of the two judgments passed by this Court by relying upon the judgment of the Apex Court. The learned Counsel appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transaction was not genuine. In fact, the amount paid by the respondent to the said commission agent has not been disputed as admittedly such amount was taxed at the hands of the said Assessee. In such circumstances, we find that the question of interference in concurrent finding of fact on this aspect would not be justified. The Division Bench of this Court in the case of Commissioner of Income-tax V/s. Noshira Dara Mody (supra) where one of us (F.M. Reis, J.) was a party has observed at paras 6 7 thus: 6. We have considered the submissions of the learned counsel and also gone through the records. On perusal of the order passed by the Commissioner, we find that the payment of commission to said Pradeep Shirodkar was duly accepte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions of Section 100 CPC. The provisions are Sections 260-A(1), 260-A(2) (c), 260-A(3), 260-A(4) of the Act corresponding to Sections 100(1), 100(3), 100(4) and 100(5) CPC. ... 15 . An appeal under Section 260- A can only be in respect of a substantial question of law . The expression substantial question of law has not been defined anywhere in the statute. But it has acquired a definite connotation through various judicial pronouncements. In Sir Chunilal V. Mehta Sons Ltd. v. Century Spg. Mfg. Co. Ltd. this Court laid down the following tests to determine whether a substantial question of law is involved. The tests are: (1) whether directly or indirectly it affects substantial rights of the parties, or (2) the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Division Bench of this Court in the case of Commissioner of Income Tax V/s. Gujarat Reclaim Rubber Products Ltd. (supra) relying upon the judgment of the Apex Court in the case of Toshoku Ltd. (supra) has observed at para 5(g),5(h) 5(i) thus: (g) We find that the common order of the Tribunal while dealing with the order of the CIT(A) for the Assessment Year 2008-09 also considers the order of the CIT(A) for the Assessment Year 2007-08 while dealing with the Revenue's contention as reflected in the orders of the Assessing Officer which are similar for both the Assessment Years. In fact, the reasons for the order of the CIT(A) for Assessment Year 2007-08 are identical to the Assessing Officer's orders in both the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own country and no part of his income arises in India. His commission is usually remitted directly to him and is,therefore, not received by him or on his behalf in India. Such an agent is not liable to income tax in India on the commission. This Circular of 1969 was admittedly in force during the two Assessment Years. It was only subsequently i.e. on 22nd October, 2009 that the earlier Circular of 1969 and its reiteration as found in Circular No.786 of 2000 were withdrawn. However, such subsequent withdrawal of an earlier Circular cannot have retrospective operation as held by this Court in UTI v/s. P. K. Unny and Others 249 ITR 612. (i) In view of the above, not only the entire issue stands concluded in favour of the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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